French fashion designer Christian Louboutin is known worldwide for shoes with an eye-catching, red lacquer sole – shoes that typically sell for $500 and up. When a well-heeled celebrity or socialite reveals that quick flash of red from the bottom of her sexy stilettos, it’s powerful publicity for the respected fashion house. You might remember when Khloé Kardashian recently showed off her baby bump while wearing a pair of Louboutin pumps.

But the latest news involving the fashion designer has far less to do with who is wearing his shoes and more to do with what makes his brand stand out – namely, those crimson soles. Louboutin once said, “The shiny red color of the soles has no function other than to identify to the public that they are mine. I selected the color because it is engaging, flirtatious, memorable, and the color of passion.”

It seems that other fashion retailers are trying to capitalize on Louboutin’s red signature, which is why he asked the European Court of Justice to stop Dutch chain Van Haren from selling shoes with a similar red sole, arguing that he had trademark protection registered in Belgium, the Netherlands and Luxembourg for that particular shade of red. But the court in February disagreed, saying “a trademark combining color and shape may be refused or declared invalid on the grounds set out under EU trademark law.” In other words, the color alone was not enough to protect Louboutin from knockoffs.

Although the case is not over, it raises some interesting questions about the limits of trademark law and how far companies should fight to protect their brands. The Knowledge@Wharton show, which airs on SiriusXM channel 111, invited Ludovica Cesareo, post-doctoral research fellow in marketing at Wharton, University of North Carolina School of Law professor Deborah Gerhardt and New England Law professor Peter Karol to discuss the issue. The following are four key points from their conversation.

Surprise Ruling

The professors said they were surprised to see the EU court side against Louboutin in the case over color, considering the United States and India have previously upheld the designer’s right to trademarks.

“In the United States, we’ve normally had less protection for a fashion design than we see over in Europe, especially in the copyright space [copyright infringement]. We are just not as open to protecting fashion designs as they are in Europe,” Gerhardt said. “Here’s a flip where the U.S. has said yes, you may have your trademark … but in Europe they’ve said no.”

The case calls to mind other fashionable products that have sought protection, such as Burberry’s signature plaid trenchcoat or Converse’s Chuck Taylor shoes. Both items are trademarked.

“Every time we think about trademarking, we start with the brand name and the logo. Those are the things that companies want to protect first,” Cesareo said. “But, especially in luxury, there are other things that consumers come to recognize as a symbol or a signature for the brand that need to be protected. For Christian Louboutin, the red sole is the signature of the shoe. It makes sense that he wants to protect it in every jurisdiction in the world. You need to understand that for a consumer, the red sole means something. It signals luxury, it signals quality, it’s a status symbol. It signals sexiness in general.” Cesareo referenced the hit song “Bodak Yellow” by Cardi B., who raps about buying “red bottoms” as a benchmark of her own success.

Louboutin isn’t trying to protect just any shade of red. The scarlet he uses is specific — Pantone 18 1663TP. “It’s fascinating because the color red on the sole has come to signal something, but it hasn’t fully been associated with the Louboutin name,” Cesareo said. “People who have high cultural capital in fashion, they know that it’s a Louboutin shoe. But to the general population, it doesn’t matter if it’s a Louboutin or some other Dutch, lower-end shoe. As long as it has that red sole, it’s signaling something.”

Gerhardt, who is working on an article about color ownership, said color works so well in branding, yet few companies try to protect that commercial distinctiveness. “Even though color is so expressive, 80% of the marks that have been registered in the last 25-year period are words; they’re text. Another 20% are designs,” she said. “If you try to make a pie chart of all the brands that claim color in terms of trying to register them as a trademark, it is .02% It is such a small sliver in my pie chart, you can barely see it.”

Gerhardt said there is a growing body of research indicating the importance of colors and signals they send. “In the U.S., courts recognize that,” she said. “The U.S. courts have tried very hard to parse those messages and say, if you’re sending a message that goes to flavor, like red for a strawberry-flavored drink, then you’re not going to be able to get a trademark. But if you are using it truly for source identification, and the public has grown to believe that the red does signal source, then in that context you can get it protected. It’s really a very nuanced analysis that the U.S. courts engage in. They’re trying to figure out the purpose of the expressive message being sent.”

Counterfeiting and Profit Loss

Copying a design is a form of piracy. In this case, Van Haren is trying to steal the status and appeal of the original, according to Cesareo. “Even though they weren’t knockoffs legally speaking, they were still pirating a design that Louboutin felt needed to be protected.”

Losing the case could be disastrous for Louboutin because it’s already one of the most counterfeited brands in the world, according to Cesareo. A few years ago, a shipment seized at the port in Los Angeles yielded more than 20,000 pairs of knock-off Louboutins, which would have been worth about $18 million if they were real.

“This could cause a real dilution of the brand,” she said. “Not just knockoffs of the brand itself, but the second that this becomes very widespread and everybody starts wearing red-soled shoes, they lose that scarcity, that status symbol. They’re going to lose their distinctive power. It doesn’t just mean that knock-off sales are going to go up, but sales of the original, authentic brand are going to go down.”

But Karol said the European court’s decision reflects a mindfulness of countervailing concerns. “You don’t want later designers to be worried about putting red on their shoes. We want red to be free for everybody to use. We want to keep that freedom and not chill these designers into worrying about how they are going to use it exactly.”

Protecting Intellectual Property

The scholars said the conversation brings them to an important point about purchasing counterfeit goods. Many consumers simply don’t know the difference. “When you’re dealing with low price-point goods, you have a thing that trademark scholars like to talk about, which is more post-sale confusion,” Karol said. “Somebody buying $150 shoes probably isn’t thinking that’s a Louboutin. They’re not confused right there. But the consumers we are worried about are the ones that are later seeing it on people’s feet and maybe are then confused into thinking that it’s a Louboutin.”

Cesareo agreed, saying noone buying a cheap imitation Gucci bag on the streets of Rome should fool themselves into thinking they got a great deal. “Even if the price point is high enough, just the location of where you’re purchasing should signal that something is wrong.”

But online shopping makes it more challenging to know what’s in the box. Copycat websites look so much like the real thing that unwitting consumers don’t know they’ve been duped until the purchase arrives at their door.

“The internet has made it incredibly hard for brands to protect their intellectual property,” she said.

“It can be tough for the eBays of the world, too,” Gerhardt said, noting that the auction site was sued over the sale of counterfeit Tiffany jewelry. “They don’t have a way of checking whether all the eBay sellers are selling authentic things or not. It can be terribly challenging, especially for auction sites that never see the product.”

It’s Not Over

The scholars said they believe Louboutin will continue to push the courts for trademark protection. They also think the designer will pursue other avenues to protect his precious red soles.

Gerhardt noted that the case is an “interesting disconnect” for Europe, which values its fashion houses as a deep part of the culture, not to mention the economy. “It will be interesting to see whether this decision [against Louboutin] holds up.”

Conversation Starters

Do you think Christian Louboutin should be able to trademark his signature red sole color? Why or why not? Can you think of any other brands that use color as a differentiator?

Ludovica Cesareo says that copying a design is a form of piracy. Do you agree that Van Haren is trying to "steal the status and appeal of the original?" How does this differ from actual knockoffs? Is it just as unethical?

How do you feel about the counterfeit and knock-off market, especially related to fashion? Where do you draw the ethical line? Many people buy knockoffs in hopes of presenting them as originals. Have you done this and, if so, with what products? Why is this damaging to companies and their brands? Does this article give you a new perspective?

1. Yes he should be able, because if it already gotten to the point that when you see a red solo, you automatically think of Louboutin, the red tells you its some kind of exclusivity to wear those shoes. Maybe Gucci with the red and green.

2. Yes I do think he is trying to copy, because Louboutin is already successful with the red sole, he wants to try to steal some of his customers so he gets more money. And yes, is very unethical.

3. I feel that people that do knock-offs are straight piracy, because they are literally copying from another person’s work, just that the quality is horrible of course. No I have no bought knock-offs. This is damaging them by losing money to the people that are selling the “same” product, when that money should go to them. I’ve always seen it this way and think knock-offs are just unethical.

This is a fantastic read; I can see as to why it is so controversial. I think, before getting into discussion about what the court should decide, we should focus our energy into a more important question: What is considered “copying”? I think the U.S. courts have done a great job in their interpretation of a “trademark”: the court are focusing more on the emotional and sentimental message that a product or idea sends — not the factual, or objective, aspect. Although this does make the case more difficult and, ultimately, more subjective to review and debate, it allows for more room and flexibility in terms of how to assess Loubotin’s claim.

There’s nothing wrong with making money, or the desire to make more money; that’s why most business exist, in fact. If Loubotin wants to protect his customers, marketplace, and clients, then he has every right to do so, to a certain ethical extent of course. So if the courts can figure out what emotional value, feeling, and message that Loubotin’s specific shade of red brings to the marketplace, then the case will be fair, regardless of outcome. However, the key will be to see if similar shades of red evoke the same message and emotion that Loubotin’s “special” shade of red does. If similar shades send a similar message, then he shouldn’t have rights to his “special” color.

I completely agree that designers who copy the red soles of the shoe are trying to steal the reputation that the Loubotin company has worked to build up. The red soles are definitely a status symbol. I think that it is unfair for another designer to steal that from Loubotin since this is the company that built up that reputation. I do agree that if Loubotin doesn’t win this court case, then the value of the original shoe is going to be lessened. More and more designers will think that it is ok to copy the style of these specific shoes and therefore, Loubotin shoes will just not be worth as much.

This company doesn’t have anything else very specific to them. If you think of Loubotin shoes, the iconic red soles come into focus…but that is it. This is the one thing that this brand has. I think it is unfair for another brand to take this away from them. The company is going to be forced to either fight hard to win the court case against Van Haren, or make something else for the public to associate with the brand.

I understand that Christopher Loubotin has built up a brand to represent something more than just a pair of shoes, and he feels it fair to price his items higher because of it. but I also understand that some people do not have the means to afford expensive brands, and the world judges them for it. People resort to buying knock-offs so that they can have the respect of others, since these brands mean so much to people. I think that knock-offs are a good thing because it is basically advertising for the company. Many people are convinced that knock-offs are the real thing and may be encouraged to go buy the real item from big brands. Knock-offs can prove to be beneficially for these big brands.

Hi Grace. Great comments on the article! In my mind, the knock-off issue has so much to do with money. At KWHS, we promote smart financial decision-making and long-term thinking about the money you earn and spend. Is it smart to save up hundreds of dollars only to spend it all on one pair of fashion-forward shoes? Well, I’m just not convinced of that. Perhaps getting something similar at a lesser price is the way to go. That said, you must consider the ethics of the situation. On the other hand, such consumer choices can damage a brand financially. This is an entirely different aspect of money to consider. All those people buying knock-offs are actually diverting cash that would end up in Louboutin’s business if consumers were to spend on the real thing. I feel you can’t have a discussion about this without considering the personal and business financial fallout.

I think that Christian Louboutin should be able to trademark their signature red solo color. This shoes have been around for a very long time and it has become a characteristic of the brand. When you see red soles you think Louboutin. Other brands that use color as a representation are Gucci (green, red and green) and Tommy Hilfiger (red, blue and white).

Van Haren is obviously trying to steal the look from Louboutin and I think it shouldn’t be able to steal what makes this brand what it is. Louboutin doesn’t have anything more that represents the brand the way the red sole does.

I think that knock-offs are one of the worst cases of piracy, because it is stealing the design that someone did with a lot of effort, and they are winning money with it. I think there is no ethical line in piracy. Stealing someone’s job is stealing part of their income, and that’s something that someone with ethics wouldn’t do.

I believe that Christian Louboutin should be able to trademark his signature red sole color because it is what defines his products as his. This signature sole is the same as other brands using symbols or patterns to define their products.
I do agree that Van Haren is trying to “steal the status and appeal of the original” because taking a brands signature symbol is done only because of the status the symbol exemplifies, and is therefore done solely for the purpose of gaining. This is very different than actual knockoffs because knock offs are attempting to recreate the original to seem as if it were the same brand, not another. I do believe it is as unethical as copying a design because both involve taking what is not theirs and gaining from it.
I think the counterfeit and knock-off market, especially in relation to fashion is too extreme, as people have begun going to great lengths to reproduce pieces of status. I draw the ethical line at knock-offs who contain the actual company name, because this creates a sense of trust which could be taken away from the real company’s.I have never bought knockoffs to pass it on as an original . Yet, I have seen many do this with Cartier’s love bracelets due to their extremely high prices. This damages brands because it makes their products commodities, lowering their status. This article has opened my eyes to many new perspectives in this debate changing my views.

I believe that Christian Louboutin should be able to keep the red soles ad a trademark to his item. It is very original to him, and i agree that Van Haren is trying to steal his style. Another example of this is Adidas, the brand with the three stripes. Other companies try to mock Adidas with having one or two stripes down the side, but not three. I feel that knock-offs can be the worst cases of piracy, by stealing a design that took effort and time while earning money. This is the same case as Van Haren, how he tried to copy Christian Louboutin’s red sole that probably took his time, and is what is earning him money.

I personally think he is right to take copiers to court to protect his name. Louboutin is for people that shop in Neiman Marcus not people that shop at target and want to show off a red bottom that isn’t really a Louboutin. Gucci is going through the same thing with having people do flower embroidery on there clothes like Gucci does. But everyone does know imitation is the highest for of idolizing